Michael Kariuki Muhu v Charles Wachira Kariuki & Arrow Chemist Limited [2015] KEHC 2569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL   APPEAL NO.  415   OF 2010

MILIMANI LAW COURTS

MICHAEL KARIUKI MUHU ……………………………..APPELLANT

VERSUS

CHARLES WACHIRA KARIUKI ……………….1ST RESPONDENT

ARROW CHEMIST LIMITED ………………….2ND RESPONDENT

JUDGMENT

This is an appeal from a decision of the Chief magistrate at Milimani Commercial Courts, Nairobi Honourable Mr S.N. Riechi (as he then was) delivered on 22nd September 2010 in Civil Suit No. 12724 of 2006.

Brief facts  of the case  in the lower court  are that  the appellant Michael Kariuki Muhu who was the plaintiff filed suit against  the  respondent/defendant Charles Wachira Kariuki seeking  general damages  for pain and suffering  and  loss of amenities  for the injuries  sustained  in a  road traffic accident  involving motor vehicle registration No.  KAR 026W belonging to and being driven by the 1st defendant.

The plaintiff/appellant  alleged that on  or about  the 14th day of July 2006, he  was a lawful pedestrian along Nairobi-Magadi road when, due to the negligence  or recklessness  of the 1st defendant, in the  manner  in which he drove the said  motor vehicle, it knocked  him as a result  of which he sustained  serious  injuries.

The defendants filed a defence denying the plaintiff’s claim and pleading contributory negligence against the plaintiff.

In a judgment delivered on 22nd September 2010 by S.N Riechi Chief Magistrate (as he then was) the trial magistrate dismissed the  plaintiff/appellant’s suit on the ground that  he was the one to blame for the occurrence  of the accident  and not the defendant  after admitting  that he had taken  alcohol.

It is that judgment which the appellant was dissatisfied with and therefore filed this appeal setting out 5 grounds of appeal namely:-

That the learned trial Chief magistrate erred  in law and in fact in dismissing the plaintiff’s  claim  in its entirety  against  the weight  of  evidence tendered  before him.

That the learned Chief Magistrate erred in law  and in fact in giving  credence to unpleaded  matters that were not  in issue.

That  the learned Chief Magistrate  erred in law and in fact in relying  wholly on uncorroborated evidence of the first defendant.

That the learned Chief Magistrate erred in law and in fact in totally ignoring the evidence of PW2, PW3 and the plaintiff’s written submissions both on the issues of liability and quantum.

That the learned Chief Magistrate erred in law and in fact in suggesting an award of damages that was manifestly low in light of the injuries suffered by the appellant.

The appellant prayed that the appeal be allowed with costs both on liability and on quantum.

The draft amended plaint dated 18th September, 2007  alleged that on or about the 14th day of July 2006, he was lawfully walking along Nairobi –Magadi road when the 1st  defendant/respondent with the authority  and  in the cause  of  his employment with the 2nd defendant/respondent, so negligently, carelessly and or recklessly  drove, managed  and or controlled  the motor vehicle  registration No.  KAR 026W that  he caused the same to lose control and violently knock down the plaintiff and as  a result of which  the plaintiff sustained  severe bodily injuries, endured  and continues to endure pain and has suffered  loss and damage.

The particulars of negligence on the part of the 1st defendant are particularized as:

Drove motor vehicle registration No.  KAR 026W at a speed that was too fast in the circumstances.

Failed to have any or any proper control of the motor vehicle registration No.  KAR 026W.

The plaintiff alleged that by reason of the matters/acts of negligence above, he sustained severe bodily injuries and suffered loss and damage.

The injuries allegedly sustained involved

Deep cut would right forehead.

Blunt head injury.

Blunt trauma to the left hip.

He prayed for judgment for general damages for pain, suffering and loss of amenities and special damages of 2,700 together with costs of the suit and interest.

The defendants filed defence on 27th December 2006 denying the entire claim by the plaintiff.  They also denied that the accident occurred on 14th July 2006 involving motor vehicle KAR 026W and the plaintiff or at all.  They also denied particulars of negligence attributed to them and pleaded contributory negligence on the plaintiffs part to wit, for:

Walking on the road in the path of travel of motor vehicle KAR 026W.

Having little or no regard for his own safety.

Ignoring the defendant’s warning and hooting to get off the road.

Suddenly and without notice jumping on the path of travel of motor vehicle KAR 026W.

Causing obstruction to the said vehicle.

Having little or no regard for other road users.

Being a danger to himself and to other road users.

Failing to observe the highway code by attempting to cross road when it was not safe to do so.

The plaintiff  filed reply  to defence  dated 15th January 2007 denying all and  every allegations contained in the defence and  issues  with the  defendant defence  while  reiterating contents  of  the plaint.

After filing  of the amended plaint  enjoining  the 2nd defendant , the Arrow chemists Ltd, it entered  appearance  on 22nd October  2007   denying  each and every claim including the  allegation that  it owned motor vehicle KAR 026W, that  it was involved  in an accident  as pleaded; that it was vicariously liable  for acts  of the 1st defendant in negligence as alleged  or at all and put the plaintiff  to strict proof thereof.

Analysis and determination

This being the first appeal, Iam enjoined to consider the evidence  in the court  below  and the entire record  in detail  which is  a requirement  under Section 78 of the Civil Procedure Act  which mandates  this court being  the first appellate  court to evaluate  and examine the lower court  record  and evidence and  arrive at  its own independent conclusion.  This principle was well espoused in the case of Selle vs Associated Motor Boat Company Ltd (1968) EA 123 where sir Clement  De Lestang  stated that:

“ This court  must consider  the evidence, evaluate  it itself   and draw its  own conclusions  though  in doing so  it should always  bear in mind  that it  neither heard witnesses  and should  make due  allowance in this respect.

However, this court is not bound  necessary  to follow the trial judges  findings  of fact  if it appears  either that  he had clearly failed on some  point to take account  of particular  circumstances  or probabilities  materially to estimate   the evidence  or if the  impression  based on the demeanor of a  witness is inconsistent  with the evidence  in the case  generally ( Abdul) Hammad  Sarif  vs Ali Mohammed  Solan (1955) 22 EACA  270. ”

I am also conscious in determining  this  appeal, of the principle  set out in Mbogo  vs Shah  & Another (1968) EA 93  where the court  set out  circumstances  under which  an appellate  court  may interfere with a decision   of  the trial court thus:-

“  I think it is well settled  that  this court  will interfere with the exercise  of discretion by the inferior  court  unless  it is satisfied  that the  decision is clearly  wrong because  it has  acted on matters  on which  it should  not have acted  on or  because it had failed to take  into consideration matters which it should have taken  into account and consideration and in doing so arrived at a wrong conclusion.”

Applying the above principles and reexamining the record in the lower court, the case in the lower court proceeded to hearing on 27th July 2010 with the plaintiff calling 3 witnesses himself inclusive. PW1 Doctor George  Kungu Mwaura  testified  that he examined  the plaintiff  on 15th September 2008 and prepared  a medical  report  showing  the injuries  sustained  by the  plaintiff  following  a road traffic  accident  on 14th July 2006.  The injuries involved;

Deep cut wound on the forehead.

Blunt left hip injury.

Suffered pain and blood loss.

The plaintiff /appellant was treated at Kenyatta National Hospital.  He relied on P3 form, previous medical report by Doctor Kiama Wangai.  He found that the plaintiff had healed scars in the injured are which consisted of soft tissue injuries.  He charged the plaintiff shs 2000 for the medical report and produced the medical report and receipt.  He concluded that the plaintiff/appellant  had healed completely.

The plaintiff/appellant testified that on 14th July 2006  he was at Nkoroi area  walking  from the shops  going home, along  Magadi road near Kamura market  towards  Nairobi on a two way road  when motor vehicle KAR 026W from Magadi to Nairobi  came from behind him and  hit  him.  The motor vehicle driven took him to Kenyatta National Hospital.  He was with a female passenger.  The plaintiff was treated and discharged.  He produced attendance card and receipt for 600/-.  He then reported the matter to Ongata Rongai  Police Station and was issued with a P3 which was filled by a doctor.  He was also issued with a police abstract for which he paid shs 200/-.  He searched  for ownership  of the accident motor vehicle  and produced  copy of records  showing  Arrow Chemist Ltd  and paid  shs 500/-  which he produced  in evidence.  He denied that he was walking on the road and or that the driver hooted but that he refused to move away.  He blamed the driver of the motor vehicle because he left his side of the road and hit the plaintiff from the latter’s side.  He sustained injuries on the head and leg.

On cross examination he stated that the accident occurred at about 8. 30pm and there was moonlight so he was seeing where he was going.  He recalled that it was on a Friday but denied that he had taken alcohol.  He admitted that DMF1attendance card from Kenyatta National Hospital was his,  showing that he was fully conscious, smelling alcohol which he had taken in the morning and that he was only smelling.  He denied that he was staggering on the road.  He stated that the motor vehicle had lights on but he did not hear its sound.  He stated that he had not healed from the injuries which included the left leg.

The plaintiff/appellant further called PW3 John Irungu Kamau who testified that he knew the plaintiff as his job partner.  That on 14th July 2006 at8. 30pm at the stage opposite Mbeere along Magadi /Nairobi road, the plaintiff was hit by a motor vehicle.  That the plaintiff  was  ahead of the  plaintiff about 10 metres  and they had  stopped for a short call of nature  when the plaintiff  was hit by motor vehicle KAR 026W which  was moving  in a zigzag manner  and  it came  to their  side of the road.

On being cross examined by  Mr J.K. Mwangi advocate, the  witness  stated that  he was together with  the plaintiff but the witness remained  behind and heard the plaintiff  screaming.  He stated that they did not live together and that the plaintiff was not drunk.  That they both did welding work and were together the whole day and the plaintiff did not inform him that he had drank in the morning.  That he saw the plaintiff lying down next to the vehicle.

At the close of  the plaintiffs case the  1st defendant  testified  that on 14th July 2006  he was driving motor vehicle KAR 026W Peugeot 406 Saloon from Kiserian  at about 8. 30pm  with a passenger E.K. Musela.As he approached Nkoroi he noticed a figure staggering towards the road from his left side.  He slowed down, hooted but the man appeared to continue crossing.  He swerved to the right of the road, moved the car off the road and he stopped.  That the man staggered and fell on the car and fell on the pavement on lose stones.  He denied hitting the plaintiff as he had stopped and the man was extremely drunk.  The pedestrian sustained a small cut on the forehead.  DW1 took him to Kenyatta National Hospital where he was making noise and staggering.  That he was smelling alcohol.  He paid for his treatment and X-ray was taken.  DW1 produced the plaintiff’s treatment card as DEX1 which showed that the plaintiff was conscious and smelling alcohol.

In cross examination by Mr Mwangi advocate, the 1st defendant responded that it was the plaintiff who fell on his car when he had already stopped on the right side of the road from Magadi and that he swerved to the right as the man was walking from the left.  He confirmed the injury on the forehead and denied that he caused the accident.  He stated that he was a pharmacist.  That the plaintiff smelled alcohol although no tests were taken to establish the level.

The parties advocates filed and exchanged written submissions.  In his submissions  dated 25th  August  2010, the plaintiff’s advocates  contended that  from the  evidence, the plaintiffs and his  eye witness   were more credible  than the 1st defendant as no evidence was  tendered to prove whether  the plaintiff  was intoxicated and or the degree  of intoxication.

In his view, the first defendant was entirely to blame for the accident but that the plaintiff was willing to concede 10% contribution in the circumstances.

On quantum, the plaintiff prayed for an award of shs 180,000/- general damages and shs 3700/- specials proven and shs 5000/- doctors attendance charges.  He relied on HC 2886/1005 Jane Njoki Muraya & Another vs Alice W. Kimai & another (AminJ in 2001 who awarded   shs 150,000/- to the plaintiff who sustained injuries involving

Soft tissue injuries to the left shoulder.

Soft tissue injuries to the left anterior chest wall.

Soft tissue injuries to the left hip.

The defendants  filed their submissions  on 17th August 2010 and on liability they submitted  that the plaintiff was solely   to blame  for the accident as he was drunk and staggered  on the road, which  fact of drunkenness he hid it from the court by failing to produce his treatment  records at Kenyatta National Hospital  which showed  he  was drunk.

It was submitted on behalf of the defendants that the plaintiff had not proved his case against the defendants on a balance of probabilities and prayed for dismissal of the suit with costs.

Further, that PW3 John Irungu Kamau was a valueless witness to the plaintiff since he did not witness the accident.

On quantum, the defendants submitted  that the  plaintiff would be entitled  to shs 50,000 general damages  relying  on the  cases of Esther Nyambura  Munyu vs Christopher Muteti HCC 1780/90 where  he plaintiff sustained  injuries  involving multiple  bruises  on the neck, head, left ear, right shoulder, left  hip and laceration on the forehead.

And HCC1313/87 Francis Murimi Kariuki vs Samwel Njoroge (Nairobi) where the plaintiff sustained cut wounds on the head, trunk and lumber region and was awarded shs 50,000.

The trial magistrate dismissed  the plaintiffs  case  on the ground  that the plaintiff was responsible  for the accident  as he was drunk and staggered  on the road.  He also found that had the plaintiff proved his case on liability he would have awarded his kshs 70,000/- general damages.

That is the record that provoked this appeal. This appeal was admitted to hearing on 22nd September 2011 and directions given on 1616/2014 and directions given on 16th June 2014 by Honourable Waweru J.  The parties advocates appeared before me on 7th October 2014 and agreed to file written submissions to dispose of the appeal herein.

The appellant’s submissions dated 30th October 2014  whose  gist  is that  the trial magistrate erred  in dismissing  the appellant’s suit on the basis  that he was  intoxicated  which fact  was not pleaded  nor was there medical evidence on the issue of intoxication if at all.

Further, that DW1’s evidence was not  corroborated by an independent  eye  witness yet he  admitted having a  passenger G.K. Musera who he did  not call as a witness in the case.  On the other hand, that the appellant called an eye witness John Irungu Kamau who supported his evidence hence the matter should be remitted back to the lower court for hearing before any magistrate.

The respondent on the other hand submitted that there was no merit in the appeal and supported the trial magistrate’s findings.  Further, that there is no requirement for corroboration of the defence witness evidence.  They prayed for dismissal of the appeal with costs to the appellants.

Flowing from the 5 grounds of appeal, the evidence on record in the lower court, submissions and pleadings, and the submissions of the respective parties in this appeal, these are 2 issues for determination:

Whether the appellant proved his case against the respondents on a balance of probability.

If so, how much quantum was the appellant entitle to.

On issue No. 1 which touches on liability, the law is trite that the person who alleges must prove.  Under Section 107  of  the  Evidence Act , (1) whoever  desires any court to give  judgment as to any legal  right or liability dependent  on the existence o facts which he asserts must prove that those facts exists”.

(2)  When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Under  Section 108  of the said Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence  at all were given on either  side.

Under Section 109 thereof “ the  burden  of proof  as to any particular  fact  lies on the person who wishes  the court to believe in its existence,  unless  it is provided  by any law that  the proof  of that fact shall lie on any particular person.”

Applying  the above  law to the appeal  herein, it is  clear that the burden  of proving liability  for the occurrence  of  the accident  in question, which accident, from the evidence  adduced in the  lower court  is not denied save  for the  manner  in which it occurred, lay with the appellant throughout the  trial and it never  shifted to the respondents  who had no counter  claim in the suit against the appellant.

The appellant’s evidence  on the occurrence  of the accident was that it was  at 8. 30pm  which fact was  admitted by  the 1st  defendant/respondent, he also stated that  he was lawfully walking on the road when the defendant’s motor vehicle  KAR 026W left its side  of the road and hit  him when he was on  his side of the road.  He was injured on the head   and leg and the 1st defendant took him to Kenyatta National Hospital for treatment where he was treated and discharged.

The defendants  on the other hand  contended that  the accident  was solely caused by the appellant  who was staggering on the road while drunk  and that the 1st  defendant who was  the driver of  the accident  motor vehicle  had stopped  on the right side of the road after swerving to avoid  hitting the appellant  who had staggered   into the road  and  that he  (the appellant) hit himself  on the car after it had stopped, not  that the car hit him.  Further , that  when  the 1st defendant came out of the car  he found the  appellant drunk and smelling alcohol, which fact was  recorded  in the hospital  treatment  notes at Kenyatta National Hospital  but  which card the  appellant  did not  produce  in court, prompting  the defence  to produce  it as defence exhibit.  Further, the defence/respondents contended that the appellant’s witness PW3 did not corroborate the appellant’s evidence as he did not witness the accident, having testified that   he only saw the appellant lying down.

The appellant  maintains that the  defence  evidence  was not corroborated  and that the  fact of drunkenness  was not   pleaded  or proved  by medical evidence  hence the magistrate  erred in relying on that fact of  drunkenness  of the appellant  which was not proved by the respondents  to dismiss  the appellant’s suit.

From the evidence  as summarized  above  and reproduced  in detail in this  judgment, I find that the appellant  did not prove his case against the  respondents against the respondents on liability on a balance  of probabilities for the following  reasons:-

That  the respondent did not have  to specifically plead the appellant’s  drunkenness as it  was the appellant himself  who admitted in cross examination that he had taken alcohol although he denied  being drunk  at the time  of accident  as he allegedly took alcohol  in the morning.

That when the appellant was taken  to Kenyatta  National Hospital  after the accident, he was treated  and discharged  but he did not  produce  the hospital treatment  card for  that delay which showed  that  he was conscious  and  smelling  alcohol, which evidence  the respondents  relied on to show that  the appellant  was drunk and staggered  across  the road.

That albeit  there  was no  medical tests  taken  and produced  on whether  or not the  appellant  was intoxicated, his conduct  of failing  to produce his  medical  records  which showed  that he  was smelling  alcohol is an indication that  he was hiding  evidence  which would  work against  him had he produced  it, as was enunciated in the case of  Bukenya vs Uganda  (1972) EA 549.

4. The appellant  offered no explanation  why  he did not  produce  his initial treatment  notes from Kenyatta National Hospital yet that was a primary  document for his case and he only  mentioned it during cross examination  while admitting  that it  was his document  issued by Kenyatta National Hospital.

In Green Palms Investments  Ltd vs  Kenya Pipeline  Company Ltd Mombasa HCC  90/2003 the court  held inter alia, that failure by a party to call  as a witness any person ( or evidences whom (which) he  might reasonably be expected to give evidence  favourable  to him may prompt  a court to  infer that the persons’ evidence  would  not have been helpful to the party’s  case and  would have  been prejudicial  to the case  and the witness or evidence  may have  technically been avoided  to  escape  being embarrassed  on cross examination.

In this case, it is clear that this being a civil case, the appellant was expected to prove his case against the respondents on a balance of probabilities not beyond reasonable doubt.

It was therefore  the duty of the appellant  to prove throughout   the trial, even if  his  case proceeded  on formal proof, or the  defendants/respondents  chose not  to testify  that the defendants  were responsible  for the accident.

The defendant’s  in my humble view, did not  have to prove anything  and by  the appellant requiring  that they  produce  medical  evidence  to show/prove  that the appellant  was intoxicated  at the time of  the accident   was to miss the point  by shifting  the onus of proving negligence or liability  to the defendant  who had  denied  the  manner in which the  accident  occurred  and even gone  ahead  to demonstrate  how the  accident occurred.

In addition , for the appellant to demand  that there should have been corroboration  of the 1st defendants’ testimony by calling  the passenger  who was admittedly  with the 1st  defendant during the  material accident is also to  miss the point. The 1st defendant  testified  uncontroverted  evidence that  he had swerved to  the right  side of the road  and  stopped when the appellant  staggered  and hit himself  on the car and fell. This evidence was not challenged and  in my view, explains the  reason  why the appellant only sustained  minor injuries  involving  a cut  on the forehead  as  shown by the P3  form and treatment notes from Kenyatta National Hospital.

In my view, had the 1st defendant crushed the appellant as he would wish this court to believe, the impact would have been greater and the injuries would have been more serious than the minor injuries sustained by the appellant.

Furthermore, the appellant’s witness PW3 in my view, did not witness the accident when it occurred after he admitted in cross examination   that:  “I only saw him lying down” and that “we were together but I was behind when I heard plaintiff screaming.”

In PW3’s evidence in chief, he did not mention that he saw the plaintiff/appellant being hit by the motor vehicle. Pw3 testified that: “ there was a motor vehicle from Magadi side.”   We were on the other side of the road.  I had stopped to urinate when the plaintiff was hit by motor vehicle KAR 026W.”He does not state how far he was from the appellant.   He further stated that the motor vehicle was moving on a zig zag manner.  The question is, how did he see a motor vehicle which came from behind him move in a zig zag manner?  The appellant  on the other  hand   testified that “ the motor vehicle  came from  behind and  knocked  me.” If PW3 was behind  the appellant  and the appellant says the motor vehicle  came from  behind him and  knocked him when  he was  on the right  side of the  road facing  Nairobi, no doubt, this  court believes  the 1st respondent’s testimony that he  swerved  to the right to avoid  hitting  the appellant  who was staggering  from  the left side of the road crossing  to the right.  If that   were not the case, then the question is, how did the appellant find himself on the right side of the road  facing Nairobi, the same  direction where  the motor vehicle  was going, as opposed to  walking  on the left  side of the  road towards  Nairobi the direction where the  motor vehicle  was going? Those questions leave no doubt that the appellant had staggered to the right side of the road.

In addition , this court  finds it hard  to believe  PW3’s evidence  that he was  walking with the appellant  from work  for reasons that the  appellant himself  in his evidence never  mentioned that  he was walking  with PW3 at the time of the accident or that  the latter was his acquaintance at the time of the accident.  If PW3  was the appellant’s  workmate  and both had  left work together and were proceeding  home, this court  wonders  why in his evidence, PW3 does not mention anything to do with the events after the appellant was hit including how and who took the appellant to hospital after  the accident. It is unbelievable  that the PW3 could have been at the scene of accident and could say nothing concerning the people who took the appellant to hospital that night or even accompany the appellant to hospital  but instead left him alone with  strangers  who had  knocked him.

It is highly doubtful that that would have happened without any explanation.  Additionally, the police abstract   too does not mention PW3 as a witness to the material accident and neither does PW3 state that he recorded   any statement    with the police following the accident which he witnessed.

The question that arises is why  did PW3 who  was the appellant’s  “workmate” and who  “witnessed” an accident  which happened at night  not offer  to record  a statement  with  the police or even take down the vehicle registration number?  Neither  were  the police  who received   the report of the accident  called to testify on the  investigations  which they  were still carrying  out according  to the police abstract  produced  to shed light  on what kind of report  they received  concerning this material  accident;  and by whom;  or who  recorded  statements on its occurrence;  and;  or who was to blame for the  accident in their estimation; now that  there was no evidence   that any of the  parties  involved  were charged  with any  traffic offence.

In my view, therefore, it was never  the duty of the respondent  to prove how the accident occurred.  On the contrary, it was the duty of the appellant to prove on a balance of probabilities that the respondents  were negligent  or contributed to  the  occurrence  of the accident as pleaded  in the plaint.  The general burden of proof  lay on the appellant because  in order to obtain judgment, he had to  establish  on a preponderance of evidence.  The evidence adduced   by the appellant  fell short of that  and left serious  doubts as to whether  the respondents  were  in any way responsible  or even  contributed  to the occurrence of the accident.  I reiterate that the 1st  respondent’s  explanation that he only swerved to the right side of the road  and stopped to avoid  the appellant  and that the appellant  staggered  and hit  his head  against the respondent’s car is more  plausible  and acceptable  in the circumstances  of this case than the appellant’s version.

The appellant as a pedestrian walking on a  public road at night was  under a duty to  take care of  his own safety.  He did not and instead  endangered  his own  life by staggering  into the road  in a  drunken state, having admitted that he had  taken alcohol.  He also  attempted to conceal  the evidence that on a balance of probabilities  tendered  to prove that  he was intoxicated at the material time which factor, most  probably  contributed to his staggering  and  crossing  the road without  ensuring that it  was safe  for him to do so.

I find that  there was absolutely  no evidence  on the record to show that the 1st respondent  was careless in his  manner of driving  the motor vehicle  at the material  time and or that  he actually knocked  the appellant.  There was  no credible  evidence  as to how careless  the the  1st respondent  drove  the motor vehicle, having dismissed  PW3’s evidence  as being farfetched, contradictory  and unreliable  and devoid of corroborating  the appellant’s testimony.

In this  case, the appellant failed to prove  that the  1st respondent  failed to do  what a reasonable  person would have  done or  did that which a person  taking reasonable  precautions  would not have done.  See the case of proprietors  of  the Brmingham Water Works , VOL CLVI  ER  1047 at page 1049 ( Alderson B).  From the 1st  respondent’s testimony, I decifer that  he took reasonable  precautions  to ensure  that the  appellant  was to  hit by the motor vehicle  otherwise  the  injuries  sustained on would have  been more serious.

It is not enough that the 1st respondent was on the road and that  his  motor vehicle came  into contact with  the appellant.  It is  sufficient  that the  1st respondent  took evasive  measures  necessary  to eliminate  the risk of crushing  the appellant  who, in my view, is lucky to be alive, credit to the 1st respondent   being vigilant and avoiding him.

From  the above exposition, I find that the appellant  failed to prove  his case on liability  against the  respondents on a balance  of probabilities  and I therefore see no ground  upon which I can interfere  with the trial magistrate’s findings  and I accordingly uphold  the trial magistrate’s decision  dismissing  the appellant’s  suit/claim against  the respondents.

The second issue is on quantum  of damages.  The trial magistrate found  that had  the appellant proved  his case against  the respondents  on liability , the court would have  awarded  him shs 70,000/- general  damages  for pain and suffering .  In so doing, the trial magistrate considered  the injuries sustained  by the appellant  which  were described  as minor soft tissue  injuries  and which  had completely  healed.

The  appellant  complains  in his  grounds  of appeal that  the trial  magistrate  ignored  the written   submissions and awarded  damages  which were  manifestly  low in light of  the injuries  suffered by the appellant.

It is  worth  noting  that awarding damages is the  discretion of the trial court, which  discretion is required  to be  exercised  judicially.  In Denshire Muteti Wambua vs KPLC Ltd (2013) e KLR  the Court of Appeal  observed that “ further we observe that the learned trial judge  failed to appreciate  that in assessment  of damages for personal  injuries the general method  of approach  is that is  comparable  injuries   should as  far as possible  be compensated  by  comparable awards  keeping  in mind the  correct level of awards in similar cases (see  Arrow Car Ltd vs Bimomo &  2 Others (2004) 2 KLR  101)”

In Rosemary Wanjiku Kungu  vs Elijah  Macharia Githinji & another (2014) e KLR  the court  held inter alia, that

” …….in awarding  damages  the general picture , the whole  circumstances,, and the effect  of injuries on the  particular  person  concerned  must be  looked at, some  degree of uniformity must be sought, and the best guide  in this respect is to have regard  to recent  awards in comparable  cases in the local  courts.  It is eminently desirable  that so  far as  possible  comparable  injuries should  be compensated by comparable  awards.  The court has to strike a balance  between  endeavoring to award the plaintiff  a just amount, so far as  money can ever compensate , and entering  the realms of  very high  awards, which can only in the end have a deleterious effect.”

In this case, the appellant  had sought  kshs 180,000/- general damages  relying  on the case  of Jane Njoki Muraya & another  vs Alice W Kimani & Another (supra) whereas  the respondents  had proposed  shs 50,000 relying on Esther Nyambura  Munyiri vs Christopher   Muteti (supra) and Francis Kariuki vs Samuel Njoroge (supra)

The trial magistrate  nevertheless  did not  consider or make reference  too any of the cited  cases or even make  any comparisons in driving  at a figure  a shs 70,000/- general  damages.  He only referred to the injuries  sustained  by the appellant  and as  per the treatment  notes from Kenyatta National Hospital  and medical report  by Doctor G.K. Mwaura.

That notwithstanding, I find that the indeed the injuries sustained by the appellant were minor soft tissues.  The treatment  notes from Kenyatta National Hospital only  show a cut on the left side of the forehead and the P3 filed  11 days  after  the injury  show  an  additional  swelling  and injuries  on the upper  limb ( left thigh).

The pleadings  particularized   the injuries  as

Deep cut  wound right  forehead

Blunt  head injury

Blunt  trauma  to the left hip.

The medical report  states that   the appellant  sustained  deep cut  wound  on the forehead.

Blunt  injury –head

Blunt   injury  hip left  side

Pin and  blood loss .

And  that he had  healed  completely.  The appellant’s  testimony in court  was that:-

“ I sustained  injuries  on head and  leg”.And  in cross examination  stated  “ I was  injured  on left leg”.

This court finds contradictions between the injuries sustained as pleaded and as per the medical notes  and P3  form.  Whereas  the treatment  notes  refer to  cut wound  left  side of the  forehead.  The  plaint  presents  a deep  cut  wound on the right forehead.

And   whereas his pleadings and evidence  in chief talks  of the injury on the leg, the P3 form talks  of the upper  3rd of  left thigh.

Parties are bound by their pleadings, it is trite  law; and the appellant  had an opportunity  throughout the  trial process and upto the date  of hearing to seek  for an amendment  to clarify  whether  it  was  the left or right side of the  forehead that had an injury, and  further  to clarify whether  he was injured  on the upper left  hips as  per the P3 form or on  an undisclosed  leg as  per his  testimony in court, pleadings  and the  medical  report.

In my view, the  contradictions  on the  type  of injuries  which  the appellant purportedly  sustained  during the encounter  with the respondent’s  motor vehicle  not having been thrashed  out,  what  remains  on record is the 1st  respondent’s evidence that the  appellant had a small cut on  the forehead  as there is no evidence of a deep cut wound on the forehead.

Further, as that the appellant must indeed   have sustained injuries after hitting  his head on the car and  falling on the pavement  on loose  stones  hence the injury on his left hip.

Those injuries were soft tissues which had  healed and cannot  be compared to  those sustained   by the plaintiffs  in the Jane Njoki Muraya, although  no two cases can be identical.

On the other hand  the injuries sustained  by the plaintiff  in  Francis Murimi Kariuki vs Samuel  Njoroge  were  comparable  to those  sustained by the appellant albeit that decision was made in 1987  many years  ago.  I would, therefore, doing the best  I can, interfere with the trial magistrate discretion  and set aside   the award of shs 70,000/-  general damages   and award  the appellant  shs 120,000/- had  he proved his case  against  the respondents  on liability  on a balance  of probabilities .

In the end, I uphold  the decision  of the trial  magistrate  dismissing  the appellant’s suit against  the respondents and dismiss  this appeal  to the extend  that I  have  stated above regarding  liability and allow  a variation on quantum of damages.

I order that each party bears their own costs of this appeal.

Dated, signed and delivered in open court at Nairobi this13th July, 2015.

R.E. ABURILI

JUDGE